Gerber v Dunmarsh Investments Pty Ltd and Another (69/2007) [2007] ZAEQC 5 (14 November 2007)

Gerber v Dunmarsh Investments Pty Ltd and Another (69/2007) [2007] ZAEQC 5 (14 November 2007)

The court found that the respondents' refusal to lease a flat to the applicant, based on a racially discriminatory clause in the lease agreement, was unconstitutional and unlawful. Clause 21, which restricted occupation to members of the 'WHITE GROUP', was declared invalid, unenforceable, and contrary to both the Constitution and the Promotion and Prevention of Unfair Discrimination Act. The respondents were ordered to compensate the applicant and to remove the offending clause from all lease agreements. A public notice was also required to inform all tenants of the invalidity of the clause.

Citation
[2007] ZAEQC 5
Parties
Applicant: Bronwyn Ellen Gerber; Respondent: Dunmarsh Investments Pty Ltd; Respondent: S T Evenwel
Court
Equality Court
Jurisdiction
South Africa
Judgment Date
14 November 2007
Case Number
69/2007
Procedural Posture
Urgent Application / Final Order
Outcome
Application granted; respondents' conduct declared unconstitutional and unlawful; compensation awarded; discriminatory clause invalidated.
Legal Topics
Equality Clause, Unfair Discrimination, Lease Agreement, Constitutional Invalidity
Constitutional Law Land and Property Equality Clause Unfair Discrimination Lease Agreement Constitutional Invalidity

Case Brief

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Parties

Bronwyn Ellen Gerber

Applicant

Dunmarsh Investments Pty Ltd

Respondent

S T Evenwel

Respondent

Procedural Posture

Urgent Application / Final Order

Legal Issues

  1. 1 Whether the respondents' refusal to lease a flat to the applicant constituted unconstitutional and unlawful discrimination.
  2. 2 Whether clause 21 of the lease agreement, restricting occupation to members of the 'WHITE GROUP', is lawful and enforceable.
  3. 3 What remedies are appropriate for the applicant in light of the discrimination.

Ratio Decidendi

The court found that the respondents' refusal to lease a flat to the applicant, based on a racially discriminatory clause in the lease agreement, was unconstitutional and unlawful. Clause 21, which restricted occupation to members of the 'WHITE GROUP', was declared invalid, unenforceable, and contrary to both the Constitution and the Promotion and Prevention of Unfair Discrimination Act. The respondents were ordered to compensate the applicant and to remove the offending clause from all lease agreements. A public notice was also required to inform all tenants of the invalidity of the clause.

Court Disposition

Application granted; respondents' conduct declared unconstitutional and unlawful; compensation awarded; discriminatory clause invalidated.

Orders

  • The respondents' conduct in denying the applicant the opportunity to lease a flat is declared unconstitutional and unlawful.
  • The respondents must pay the applicant ten thousand rand as compensation, with payment terms specified.